Onyango & 3 Others v Wasswa & Another (Civil Appeal 37 of 1985)

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Held that the appeal was incompetent. Under Order 39 Rule 1 of the Civil Procedure Rules, an appeal to the High Court must be instituted by filing a memorandum of appeal in the prescribed form, not by filing a notice of appeal. The notice of appeal filed in December 1985 could not institute the appeal. The memorandum of appeal filed in 1987 was assigned the same appeal number as the earlier notice, indicating the court erroneously treated the notice as instituting the appeal. The memorandum could not retrospectively validate the defective commencement. No application for extension of time or supporting evidence justifying late filing was on record. Appeal struck out.

Outcome

Appeal struck out as incompetent

Facts

The original suit (Mengo Chief Magistrate's Court Civil Suit No. 1459 of 1971) was instituted by Magi Textile Ltd against the late Ochola (husband of the first appellant, father of the other appellants) to recover a debt. A consent judgment was recorded in February 1972. Execution proceedings were instituted for the balance. A house belonging to the judgment debtor was sold by the first respondent as broker in December 1972. The judgment debtor disappeared and was presumed killed. The appellants obtained letters of administration and filed various unsuccessful applications. On 29 November 1985, the Chief Magistrate ruled against the appellants and granted leave to appeal on the same day. A notice of appeal was filed in the High Court on 11 December 1985 and assigned Appeal No. 37 of 1985. A memorandum of appeal was not filed until 27 May 1987 at the earliest. The High Court and Supreme Court dealt with the matter on multiple occasions without the defect in commencement being raised.

Issues

1. Whether the appeal was competent where a notice of appeal was filed but no memorandum of appeal was filed until nearly two years later.
2. Whether a notice of appeal could itself institute an appeal in the High Court.
3. Whether the memorandum of appeal filed in 1987 could validate an appeal purportedly instituted by notice in 1985.

Orders

• Appeal struck out.
• Costs awarded to the respondents.

Rules and key headnotes

Legislation cited (4)

• Civil Procedure Rules Order 40 Rule 1(1)(h)
• Civil Procedure Rules Order 39 Rule 1(1)
• Civil Procedure Rules Order 39 Rule 1(2)
• Civil Procedure Act s.80(2)

Cases cited (1)

• Francisco Di Julio v Stir Jag Astaldi (EA) Ltd [1954] 21 EACA 142

Cases citing this judgment (4)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Sande v Don (U) Limited & Another (Civil Appeal 62 of 2020)
• Tight Security Ltd v Chartis Uganda Insurance Company Ltd & Anor (Civil Appeal No. 14 of 2014)
• Wasswa Semukutu & Co Ltd v Ochola & 3 ors [1991] UGSC 10
• Hannington Wasswa Semukutu and Company v Onyango and 2 Others (Miscellaneous Application 12 of 1988)

The original judgment as reported. Read the original PDF before relying on any passage.